@JUDGMENTTAG-ORDER
P.R. Shivakumar, J.@mdashThe present petition has been filed u/s 482 Cr.P.C for quashing the first information report registered on the file of
Central Crime Branch, Tiruppur as Cr.No.6/2009 for alleged offences punishable under Sections 468, 471, 120-B, 520 and 506(i) IPC.
2. Though the petition, at the first instance, was filed against the investigating officer, namely the first respondent alone, subsequently, the de-facto
complainant Smt. G. Seetha Devi got herself impleaded as the second respondent by filing a miscellaneous petition M.P. No. 2 of 2009 and
obtaining an order on 09.06.2009 for her impleadment in the criminal OP.
3. The petitioner herein is none other than the brother of the second respondent herein (de-facto complainant). Both of them jointly purchased
properties in the years 1989 and 1990. The properties, thus purchased by both of them were in their joint enjoyment till differences arose between
them leading to the filing of a suit by the second respondent herein in O.S. No. 303/2008 on the file of Sub-court, Tiruppur in the month of August
2008 for partition and separate possession. The suit was resisted by the petitioner herein, who figured as the defendant in the said suit by filing a
written statement containing allegation to the effect that the second respondent herein had executed a general power of attorney in respect of her
half share in the properties purchased by her jointly with her brother (the petitioner herein) in favour of one V. Bhaskaran and in exercise of the
power conferred upon him, the said Bhaskaran executed a registered sale deed in favour of the petitioner herein on 25.04.2008; that the petitioner,
after having purchased the same for a valuable consideration of Rs. 4,50,000/-, made improvements to the property spending huge amount and
that the second respondent, with some ulterior motive to gain unlawful enrichment and as an abuse of process of court, had filed the above said
suit.
4. Pursuant to the filing of the said written statement by the petitioner herein on 23.12.2008, the second respondent herein filed a reply statement
denying the allegations found in the written statement and specifically denying the allegation that she had executed a power of attorney in favour of
the above said V. Bhaskaran and contending that the petitioner herein was liable to be prosecuted in a criminal court, as he had fabricated
documents. The said reply statement was signed on 03.01.2009 and filed on 23.01.2009. Under such circumstances, on 12.01.2009 itself, the
second respondent herein lodged a complaint with the Central Crime Branch, Tiruppur alleging conspiracy between the petitioner herein and V.
Bhaskaran, pursuant to which they forged the signature of the second respondent (de-facto complainant), fabricated a document styled as the
power of attorney and created a document on the basis of the forged power of attorney as a sale deed in favour of the petitioner on 25.04.2008. It
was also alleged in the complaint that, when the second respondent (de-facto complainant), after coming to know that they had forged documents,
in order to stake claim to the property of the second respondent, she questioned the petitioner regarding the same on 05.01.2009, for which he
replied that the second respondent/de-facto complainant could do anything she wanted to do and caused intimidation by causing a threat to kill her
in case she could claim her property. Though the complaint was lodged by her on 12.01.2009, the police, probably considering the bar provided
u/s 195 Cr.P.C., assigned it a C.S.R. No. (C.S.R. No. 4/2009) and later on registered a case on 05.03.2009 as Cr. No. 6/2009 on the file of
Central Crime Branch, Tiruppur for offences punishable under Sections 468, 471, 120-B, 420 and 506(i) IPC after obtaining legal opinion from
the Assistant Public Prosecutor.
5. Pursuant to the registration of the said case, the petitioner herein has come forward with the present petition for quashing the FIR. The petitioner
has sought for an order quashing the FIR on the grounds that a civil dispute between the petitioner and the second respondent, who are brother
and sister, is sought to be given a criminal colour by lodging a false complaint with ulterior motive; that the said complaint nonetheless will amount
to an abuse of process of law and that there is a clear bar for taking cognizance of the offence otherwise than on a complaint in writing given by a
court in which the suit was filed as the offences under Sections 468 and 471 IPC were allegedly committed in respect of a document produced in a
proceeding pending in a court of law, namely the Sub-court, Tiruppur.
6. The petition is resisted by the respondents 1 and 2 contending that there was no impediment for the police to take cognizance of the offence
based on the complaint of the second respondent/de-facto complainant and that the contention of the petitioner that a pure civil dispute is sought to
be converted into a criminal case with ulterior motive in order to achieve unlawful gain, is quite untenable since the said ground has been raised for
the sake of raising a ground in a petition seeking quashing of the first information report.
7. Mr. J. Franklin, learned Counsel for the petitioner solely relies on a judgment of a learned single judge of this court in M. Sadasivam and Ors. v.
K. Duraisamy reported in (2008) 1 MLJ (Crl) 9. It is true that in the said case, after referring to the judgments of the Hon''ble Supreme Court in
Surjit Singh v. Balbir Singh reported in 1996 SCC (Cri) 521 and in Gopalakrishna Menon v. D. Raja Reddy reported in AIR 1983 SC 1052, the
learned single judge has observed that there is a total bar u/s 195(1)(b)(ii) of Cr.P.C for taking cognizance of the offences mentioned in the said
provision unless the complaint in writing is filed as per the procedure described u/s 340 of the Code of Criminal Procedure by or on behalf of the
court in which the document relating to which the offence was allegedly committed had been filed or given in evidence.
8. The learned Counsel for the petitioner relying on the above said observations made by a learned single judge of this court in the above said case,
has argued that the document, which is alleged to have been forged is one filed in a civil suit pending before the Sub-court, Tiruppur and that hence
the bar provided u/s 195(1)(b)(ii) of Cr.P.C., would squarely apply to the complaint preferred by the second respondent herein and that the first
information report registered based on the complaint of the second respondent in Cr. No. 6/2009 on the file of the Central Crime Branch, Tiruppur
is liable to be quashed in exercise of the inherent powers of the High Court.
9. In addition to the above said legal contention relying on an earlier judgment of this court as a precedent, the learned Counsel for the petitioner
has also contended that the very fact that the second respondent has chosen to prefer a complaint after filing the civil suit for partition in which the
genuineness of the documents in question was also challenged by her and without waiting for the result of the civil case will amount to an abuse of
process of law and that hence for that reason also the first information report in Cr. No. 6/2009 on the file of Central Crime Branch, Tiruppur is
liable to be quashed.
10. Per contra, it is contended on behalf of the respondents that the bar provided u/s 195(1)(b)(ii) is not attracted to the case on hand in so far as
the forgery is not alleged to have been committed after the document was produced in a court of law and since the case of the de-facto
complainant is that the forgery was committed before the said document was produced in a court of law in the civil proceedings and that hence the
prayer made by the petitioner for quashing the first information report relying on the above said provision should be rejected as untenable.
11. It is the further contention raised on behalf of the respondents that there was no latches on the part of the second respondent/de-facto
complainant, who came forward with the complaint within a reasonable time after the written statement containing allegation to the effect that the
second respondent had executed a power of attorney in favour of V. Bhaskaran, who in turn executed a sale deed in favour of the petitioner on the
strength of such power of attorney; that when the complaint contains sufficient allegations disclosing commission of cognizable offences, the first
information report registered based on the complaint cannot be quashed simply because a civil case is pending regarding the genuineness of the
document, which is alleged to be forged; that every case of alleged forgery shall contain elements of disputes of civil nature as well as criminal
nature and that when clear and unambiguous averments are made in the complaint, the court cannot quash the complaint by evaluating the
allegations made in the complaint.
12. Let us now take up the legal plea raised on behalf of the petitioner to the effect that Section 195(1)(b)(ii) is a bar for taking cognizance of the
offences u/s 468 and 471 IPC, for which reliance has been made on a judgment of this court in M. Sadasivam and Ors. v. K. Duraisamy reported
in (2008) 1 MLJ (Crl) 9. Section 195(1) reads as follows:
(1) No court shall take cognizance-
(a)(i) of any offence punishable under Sections 172 - 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, or except on the complaint in writing of the public servant concerned or of some other
public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following Sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any
proceeding in any court, or
(ii) of any offence described in Section 463, or punishable u/s 471, Section 475 or Section 476, of the said Code, when such offence is alleged to
have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (i) or Sub-clause (ii),
except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some
other Court to which that Court is subordinate.
13. Of course it is true that there is no explicit stipulation in the said Section that the forgery relating to a document filed in a proceedings before a
court of law or given in evidence in a court should have been committed after the said document was filed or given in evidence in the said court.
Section 195(1)(b)(ii) Cr.P.C. simply states that, if any such offence described in Section 463 or punishable u/s 471, Section 475 or Section 476,
of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in
any court, no court shall take cognizance of such offence otherwise than on a written complaint given by the court concerned or on his behalf. The
said Section has been interpreted by the learned single judge of this court, of course relying on two earlier judgments of the Hon''ble Supreme
Court in Surjit Singh v. Balbir Singh reported in 1996 SCC (Cri) 521 and in Gopalakrishna Menon v. D. Raja Reddy reported in AIR 1983 SC
1052, to mean that any offence of forgery allegedly committed in respect a document produced or given in an evidence in a proceeding before a
court in respect of which such forgery is alleged to have been committed either prior to such production in the court or subsequent to its
production, the bar u/s 195(1)(b)(ii) will be attracted.
14. With due respect to the Hon''ble judge, I am not able to concur with the view expressed by the learned single judge in the above said judgment
cited by the learned Counsel for the petitioner. The same does not have a binding effect since subsequent judgments of the Hon''ble Supreme
Court in which a contrary view has been expressed, were not adverted to by the learned single judge in arriving at the said conclusion. In fact, the
Hon''ble Supreme Court in Sachidanand Singh and Anr. v. State of Bihar and Anr. reported in (1998) 2 SCC 493, a larger bench of the Supreme
Court consisting of a three Hon''ble judges has made the following observation:
The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the
document was committed before the document was produced in a court.
15. When the very same question was raised before the constitutional bench consisting of five Hon''ble Judges of the Supreme Court in Iqbal Singh
Marwah and Another Vs. Meenakshi Marwah and Another, . The said view expressed by the three judge bench of the Supreme Court in
Sachidanand Singh and Anr. v. State of Bihar and Anr. reported in (1998) 2 SCC 493, was approved and the constitutional bench of the Hon''ble
Supreme Court made the following observation:
An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of
an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh and Anr. v.
State of Bihar and Anr. reported in (1998) 2 SCC 493, after preparing a forged document or committing an act of forgery, a person may manage
to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the
document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the
court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of
such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
....
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Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely
adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of
the type enumerated in Clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not
come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be
avoided.
It was also observed therein as follows:
In view of the discussion made above, we are of the opinion that Sachidanand Singh and Anr. v. State of Bihar and Anr. reported in (1998) 2
SCC 493, has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C would e attracted only when
the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a
proceeding in any court i.e. during the time when the document was in custodia legis.
16. The same was followed by a recent judgment of the Hon''ble Supreme Court in P. Swaroopa Rani v. M. Hari Narayana Alias Hari Babu
reported in (2008) 3 SCC (Cri) 79.
17. These three judgments which brought about a change in law by the judicial interpretation were not taken note of by the learned single judge
while making the observations in the judgment cited on behalf of the petitioner herein in support of his contention that there is a bar u/s 195(1)(b)(ii)
Cr.P.C for taking cognizance of the offences alleged in the complaint. As the said view expressed by the learned judge was not only in ignorance
of the above said subsequent judgments of the Hon''ble Supreme Court but also is diametrically opposite to the view expressed by the Hon''ble
Supreme Court. The same is per incuriam and can never be a binding precedent since reliance was made on a judgment which was subsequently
overruled by larger benches including a constitutional bench of the Hon''ble Supreme Court.
18. The said judgments squarely apply to the case on hand. In view of the said observation of the Hon''ble Supreme Court in the latest cases, this
court accepts the contention raised on behalf of the respondents that only when forgery and tampering with the documents are alleged to have been
committed in respect of a document produced in a court after the same was produced in the court or given in evidence in the proceedings, the bar
u/s 195(1)(b)(ii) will be attracted and that the said bar is not attracted to the cases of forgery or tampering with the documents allegedly committed
prior to the production of the said documents in the court.
19. It is the clear case of the second respondent/de-facto complainant that the power of attorney was forged in her name before the production of
the same in the civil suit and that hence the bar provided u/s 195(1)(b)(ii) is not attracted to the case on hand.
20. So far as the other two contentions of the petitioner are concerned, this court is of the considered view that they are also liable to be rejected,
as there is no substance in them. The contention of the petitioner that the second respondent having chosen to file a civil suit in which the question
of genuineness of the document is raised, should not have chosen to prefer the complaint alleging forgery of the document without waiting for the
result of the civil case, does not have any substance in it. It is unnecessary to cite all the precedents, which go to show that when an act giving rise
to a cause of action for criminal prosecution as well as a civil remedy, the criminal prosecution launched cannot be quashed simply because a civil
remedy is available or that proceedings for such civil remedy has been initiated. Suffice it to cite a judgment of the Hon''ble Supreme Court in
Vitoori Pradeep Kumar Vs. Kaisula Dharmaiah and Others, . It is traite law that the availability of the civil remedy and the fact that proceedings in
a civil court has been initiated for such civil remedy is not a bar for seeking criminal prosecution of the offender.
21. The next contention of the petitioner that the second respondent has chosen to prefer the complaint with some latches and as an afterthought
also deserves to be rejected as untenable. As pointed out supra, within a reasonable time after she came to know the fact of commission of the
alleged offences through the written statement of the petitioner herein in the suit filed by the second respondent, she has not only filed a reply
statement denying the genuineness of the document in question, but also chose to prefer the complaint setting the criminal law in motion against the
petitioner herein. Allegations indicating the absence of knowledge of the document till the filing of the written statement by the petitioner in O.S.
No. 303/2008 are also found in the complaint. Therefore, it cannot be said that there are latches on the part of the second respondent/de-facto
complainant and the plea of the petitioner that the complaint was the result of an afterthought also deserves to be rejected as untenable.
22. The next contention of the petitioner is to the effect that the lodging of the complaint by the second respondent/de-facto complainant is an
example of abuse of process of law. Except a bald allegation on the ground that the petitioner and the de-facto complainant are brother and sister
that it is an example of abuse of process of law and that the complaint has been lodged before the disposal of the civil case instituted by the de-
facto complainant against the petitioner, no other ground has been raised in support of the petitioner''s contention that the complaint of the de-facto
complainant is an example of abuse of process of law. We have already seen that the pendency of the suit is not a bar for preferring a complaint to
set the criminal law in motion. Therefore, the petitioner''s contention that during the pendency of the parallel proceedings in a civil court, lodging of
the complaint and setting the criminal law in motion shall amount to abuse of process of law, does not have any substance in it and the same
deserves to be rejected.
23. When the de-facto complainant has emphatically contended in the complaint that she did not execute any power of attorney in favour of V.
Bhaskaran who executed the sale deed in favour of the petitioner herein as the power agent of the second respondent, the complaint cannot be
quashed on the sole ground that the transaction has taken place in favour of the petitioner, who is none other than the brother of the de-facto
complainant. If at all the sister wanted to convey her property to his own brother, there was no need for her to allow the intervention of the third
person as an agent by executing a power of attorney in his favour for the purpose of executing a sale deed in favour of the petitioner, the learned
Counsel for the second respondent pointed out. Though there is substance in the contention raised by the learned Counsel for the second
respondent, it shall not be proper to express any opinion regarding the said contention as doing so will amount to appreciation of evidence and
evaluating the same, which cannot be done in a petition filed u/s 482 Cr.P.C.
24. After considering all the points raised on behalf of the parties, this court comes to a definite conclusion that it is not a fit case in which this court
can exercise its inherent power for quashing the first information report registered on the basis of the complaint of the second respondent/de-facto
complainant. There is no merit in this petition and the same deserves to the dismissed.
25. Accordingly, this criminal original petition is dismissed. Consequently, the connected miscellaneous petition is closed.